The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
This is an application for bail pursuant to the United States
Constitution and section 3142 of title 18 of the United States
Code. The government has charged the defendants with multiple
murders while they were policemen acting in aid of Mafia members'
criminal activities in the 1980s and early 1990s. A charge of
illegal drug dealing in the twenty-first century is also made.
The court has held a full hearing on the bail issue. For the
reasons indicated below, bail with strict conditions of control
to protect the public is granted.
The government has conceded that the statutory presumption
against bail based upon allegations of drug dealing should not
apply. Under subdivision (e) of section 3142 it is presumed in
drug cases that no condition or combination of conditions will
reasonably assure the appearance of the person or the safety of
the community. Because of the government's concession, that
presumption is inapplicable.
The issue under the statute and Constitution is whether any
condition or combination of conditions will reasonably assure the
appearance of the defendant at trial and the safety of other
persons and the community. Unless the court finds that no such
condition or combination of conditions will assure the
defendant's appearance and the community's safety, bail must be
To conclude that no condition or combination of conditions will
reasonably assure the safety of any other person in the
community, the judicial officer must require "clear and
convincing evidence." The statutory burden on the government when
there is no presumption is heavy. Some 80% probability is
required. See, e.g., United States v. Copeland,
369 F. Supp. 2d 275, 286-87 (E.D.N.Y. 2005) (citing authority). Under subdivision (g) of section 3142 the court must first
consider the nature and circumstances of the offense charged. The
offenses charged here could hardly be more serious. This is a
crime of violence under subdivision (f) of section 3142. The
maximum sentence is life imprisonment.
Second, the court must consider "the weight of the evidence"
against the defendant. 28 U.S.C. § 3142(g)(2). The weight of the
evidence adduced thus far is not strong because the statute of
limitations problem is serious, as indicated at the hearing. See
Hr'g of July 7, 2005, at 65-69.
Third, to be evaluated are: the history and characteristics of
the persons charged, including the person's character; physical
and mental condition; family ties; employment; financial
resources; length of residence in the communities; past conduct
related to drug or alcohol abuse; criminal history; and the
defendant's record concerning appearance at court proceedings.
28 U.S.C. § 3142(g)(3)(A). The evidence submitted to date on all of
those issues favors the defendants. Their record, at least on its
face, as police officers, against whom no other criminal charges
have been made, is favorable. Neither defendant was on probation,
parole, or other limitation of activities at the time of the
alleged crimes. See 28 U.S.C. § 3142(g)(3)(B).
Neither defendant is likely to abscond before trial. There is
no reason to believe that the defendants will not appear in view
of the extreme financial dangers to their families should they
fail to appear as required.
Neither appears likely to be a threat to others. See
28 U.S.C. § 3142(g)(4). It is highly unlikely that these defendants,
at this advanced stage of their lives, present any serious threat
of criminal conduct while they are released on bail. It is highly
unlikely that they will have any possibility themselves, or with others with whom they might
associate, to threaten possible witnesses.
The court must, under the statute and the Constitution,
approach the problem with the presumption of innocence in mind.
These defendants are presumed to be innocent. Until the
government proves them guilty beyond a reasonable doubt, and a
jury finds them guilty beyond a reasonable doubt, they must be
deemed to be innocent.
The defendants' presence in jail prior to trial will
substantially impede the work of their attorneys. Extensive
wiretaps and other evidence will require many hours of
consultation between attorneys and clients that are difficult
under jail conditions.
The defendant Eppolito shall be released on bail. A five
million dollar bond is required, secured by the personal bond of
defendant; by the home which he and his wife own in Las Vegas
with an equity of approximately $400,000; with the home of his
daughter Andrea Eppolito in Las Vegas with an equity of
approximately $100,000; with the home of Angelo and Sheila
Todisco, Mrs. Eppolito's brother and sister-in-law, with an
equity of approximately $500,000; and with the home of Paula and
Albert Guarneri, defendant's sister and brother-in-law, with an
equity of approximately $900,000.
If any mortgage of defendant's property is required to pay
legal fees for either defendant, advance ...